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This pattern can be partially explained by the ageing populace and a generation of baby boomers who have a less stigmatised mindset about getting divorced. Additionally, however, “silver splitters” have a distinct advantage on the younger generation when it comes to their economic position.

As they have had more time on the property ladder, many older people have built up quite substantial levels of wealth. The Nationwide chain of estate agents for high-end property, Savills, estimate that divorcing husbands and wives in England and Wales, who own homes, hold a net housing wealth (after mortgage debt) of a remarkable £9.9bn. Of this wealth, Savills estimate that 48% of it is held by the over 50s; this is despite the fact that they account for only 28% of divorce.

Savills studied the asking price data from property sales website Rightmove, and discovered that older couples sharing a four-bedroom home could split up and purchase, individually, a two-bedroom house in 92% of local authorities, once the sale of the main house had gone through. Now, if the same factors were used for a younger couple’s ordinarily three-bedroom family home, they would be able to afford a two-bedroom house or one-bedroom house in under 5% of local authorities.

This fascinating investigation by Savills appears to show that a younger divorcing couple, with a more modest home, will have considerably less money to share, as well as having the burden of a bigger mortgage. These couples would, perhaps, welcome the recent soaring house market.

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Divorce, death and debt are all issues that push homes onto the market in tough times as well as good. However, in the last 18 months, the first factor has played an escalating role in causing homes to land in the hands of the real estate middlemen. Together with relationship counsellors and family lawyers, estate agents reveal an increase in divorce activity levels, whether as a result of stressful family court situations or an agreed split.

During the recession, faced with shrinking budgets, partners looking to separate felt they could either not support themselves independently, or they would not get the optimum price for their personal or business assets. Because of this, apart from a 4.9% rise in 2010, divorce rates continuously fell in the decade leading up to 2011. Couples found it more difficult to break up during the economic problems of the previous years. The number of partners cohabiting in the previous five years, we know from experience, has grown as they think they would not be able to pay for the split.

Budget improvements, as well as soaring house prices, seems to be behind the recent rise in divorce numbers. Getting divorced is more economically practical then it was throughout the main years of the recession. Those selling former matrimonial homes may have adequate equity to put a down payment on a “divorce home”. Also the faster-moving property market in the UK is an indication that sales are less likely to suffer setbacks and more likely to be successful. After all, achieving financial settlement is much more simple if you know that the property that your settlement is dependent on has a high possibility of being sold.

High house prices could permit some couples to financially detach themselves from each other, but can also produce challenges when the former couple want to purchase two new homes in the same area, one each, or one partner wants to keep hold of the family home. For the last scenario, having to sell the main property, even when children are involved, has become almost inescapable. Debt has aggravated the issue. In the past most people had smaller mortgages. The huge level of borrowing on the former matrimonial home often means that one person is unable to meet the big mortgage repayments.

For the economically weaker partner, the latest tightening of mortgage affordability rules has made things worse. Lenders now need to ask more rigorous questions of the borrowers finances and expenses, and they have to assess a borrower’s capability to pay mortgage repayments with increased interest rates. This was launched at the end of April under the Mortgage Market Review. So far, it appears that some lenders will consider maintenance payments when assessing affordability, although some will not.

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Forcing someone into marriage in England and Wales has carried, from June 16, a maximum 7 year prison sentence under the Anti-Social Behaviour, Crime and Policing Act 2014. This modification in the law was initially proposed by David Cameron in 2012, who said that forced marriage was “little more than slavery” and “abhorrent”.

The characteristics of a forced marriage is one where either one or both partners have not given their approval to the marriage but were intimidated into it, either physically, psychologically, financially, emotionally or sexually.

The government anticipates that this law change will protect thousands of possible victims. It also criminalises the forcing of a British national into marriage outside of the UK. Official data shows the scope of the problem; the Home Office Force Marriage Unit alone, in 2013, gave guidance or assistance associated to potential forced marriages to more than 1300 people. This is despite the fact that the characteristics of forced marriage means that numerous cases are probably going completely unreported. The new legislation will outlaw the practice, the Home Secretary Theresa May reports, and make sure that potential victims are protected, and that they have the basic liberty to choose who to get married to. She said she was proud of the UK’s role as a world leader in fighting this particular crime. This summer, the UK’s first summit dedicated to inspiring action against forced marriage and associated issues, will be held by the Prime Minister.

In addition, breaking a civil Forced Marriage Protection Order (FMPO) is now punishable by five years in prison. Recently, the NSPCC said the number of youngsters calling ChildLine about forced marriage was up by two thirds compared to the recent year. Some of these youngsters were as young as 12.

Family Mediation – forcing a rethink

The push for the use of mediation in family law was relentless by the British Government during the 1990s. However, by the close of the decade they were forced into a rethink things due to the repeal of several parts of the Family Law Act. These developments were the last thing the Government envisioned, with the following issues being most prominent:

The mediators who were in place simply couldn’t handle the amount of work coming in. They were snowed under at times, with many being unhappy at the fact that they had to mediate couples that had no interest in the process.

Battling the critics

Mediation on a whole had been so heavily criticised up to that point, rather than work with process solicitors used it as a means to push people further towards a court based solution. This made the mandatory process somewhat redundant and it simply came across as a precursor to traditional divorce proceedings.

Lack of progress

The process came across as not very progressive and didn’t do a great deal to help resolve important issues. Records show that less than a third of the couples who did participate managed to make agreements over crucial points such as children and money.

The compulsory element was considered to be the Governments initial masterstroke, yet in hindsight it probably did more harm than good. It simply served as a motion that a couple had to go through before heading to a traditional court settled divorce.

The next step

In the eyes of the Government the fact that they were unable to integrate mediation into family law made it a failure. In the early days of the scheme there was a mass of mediators ready to get to work, however as the system faltered many of these mediators were left twiddling their thumbs. Mediation firms were left scrambling for cases and many went out of business as a result. However, it wasn’t all bad news, as many well-reviewed mediators persevered in what was trying times for the field. They were able to capitalise on what little business there was and carry that momentum in the 21st century, where mediation has become a more respected form of family law conflict resolution.

Mediation didn’t really take off as it should have done in the 1990s, that itself is undeniable, but the few who did use it showed that there was a market for it. Those who emerged from the decade having handled mediation were considered a new breed of solicitor, one that embraced divorce proceedings but felt no urge or requirement to spend day after day in a courtroom.

Collaborative law arrived in the early 2000s and was seen as another form of alternative court settlement procedure, which would either rival or surpass mediation. Everyone seemed to believe that it would take work away from the already small pool of mediators. However, since its inception it is clear that there is little competition between the two, as they both lend themselves to different divorce situations.

The future for Family Mediators

During 2013 the Children and Families Bill made its way Westminster, which has helped further the mandatory nature of family mediation. Before heading to an expensive hearings in court, divorcing couples will need to attend a ‘Mediation information and assessment meeting’ (MIAM) or at minimum provides valid reasons as to why they should be exempt from such. It will be another attempt to tell the public that getting divorced in traditional court orchestrated proceedings is not the only way to go, mediation should be considered a realistic and viable alternative.

The future of mediation is always something that has a question mark hanging over it, but for once there is a lot of positivity surrounding the field. What will be interesting to see is how that positivity translates to use, as with the arrival of the Australian model and the effects of the Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects Of Mediation In Civil And Commercial Matters (2008/52) soon to be felt, couples will have no shortage of divorce options to choose from.

It is possible to argue that family mediation was misunderstood in the grand scheme of things back in the 1990s. It never quite got out the blocks at a time when it was needed most, however things have changed. It has now established a small yet growing field of dedicated mediators, which have worked hard to push past the initial criticisms to provide a quality service. The field has experienced a full U-turn and after 20 years of work is now a viable option for those looking towards divorce.

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Here at Bonallack and Bishop, we are big fans of family mediation – which really does make the whole process of divorce quicker, easier and less expensive and less acrimonious – but sadly doesn’t suit everybody. However, if you think you’re right for family mediation, make sure you contact one of our family mediators

It seems that there is no area of modern life that social media has not touched – even divorce law. Indeed, divorce lawyers are turning to sites such as Facebook and Twitter to find marital assets which have been squirrelled away by unscrupulous spouses during legal proceedings when getting divorced.

Sadly, it is common for parties involved in financial disputes during divorce to attempt to understate the value of their assets so that their ex-partner cannot receive their fair share. However, judges are now allowing lawyers to use social media platforms to search for evidence of financial non-disclosure or under-disclosure.

Given the enormous user figures enjoyed by social media sites, there is an enormous amount of information available and spouses may find that they have unwittingly revealed something in a post or personal message that comes back to haunt them when going through the divorce process.

It is therefore surprising how much a divorce lawyer can deduce from the information posted on social media. It can not only reveal if the person has been dishonest during proceedings but also where the missing assets might be. Indeed, when people type their direct, messages, statuses or tweets, they are unlikely to be thinking about the prospect of such information being used against them in the family courts.

The fact that such private information is being accessed without the permission of the individual who set up the profile has creating some tensions regarding the privacy of information. However, it is clear under English law, that privacy laws are secondary to the court orders that allow divorce lawyers to access some information where financial deception is alleged.

Fearing a backlash from users, social media platforms have been quick to clarify their legal position stressing that access will only be granted where an official court order has been granted. This is important in ensuring that the privacy of the everyday user is protected while avoiding obstruction of the legal process.

Another new development in divorce law is the treatment of Bitcoins and similar online currencies. The value of these can be complex and divorce law specialists are growing to realise the role that they can play in covering up marital assets. One can therefore expect to see such currencies included within future divorce cases.

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For most divorce cases in the UK, the judge assigned to the proceedings will not permit the case to continue until the former couple have pursued family mediation as a first port of call. Mediation is, in brief, when an unbiased 3rd party assessor attempts to help the former couple negotiate an arrangement over any apsect in dispute [ often children issues or joint financial assets], without having to resort to formal court proceedings.

Despite this, Relate, the UK’s biggest provider of couples’ counselling, claim that mediation is still used more frequently in places like Australia and Canada, where it appears to have a long history of success, than it is here in the UK. Irrespective of the rising number of relationship therapists and family lawyers who agree that mediation is faster, less traumatic and much more economical, here in the UK we still seem to misinterpret family mediation as a form of counselling.

Relate state that the decrease in Government spending towards legal aid for divorce proceedings and mediation has also had a damaging effect. The wrong perception, that legal aid for mediation purposes can now only be accessed when domestic abuse has been a factor, has led to an acute drop in mediation since April 2013, when the new regulations were implemented.

Family law courts – getting overwhelmed

The Government reduction in legal aid spending has also resulted, as expected, in a surge of individuals opting to represent themselves in a divorce court instead of hiring a lawyer. A report from HM Revenue & Customs states that, when the same period between April to December is compared like-for-like, 46% more people decided to represent themselves in 2013 than in 2012.

The courts are being overwhelmed with litigants who are representing themselves, warn lawyers, which usually results in delays. These delays can be significant, adding months to a case. Getting divorced, in itself, can be relatively uncomplicated. The complications arise when trying to come to an agreement regarding finance and assets. It’s difficult for self-representing individuals trying to attain a financial arrangement to grasp the array of different types of settlements, or grasp the legal ramifications of the alternate options (for example, dividing pensions.)

Additional pressure has come from George Osborne lowering the time-scale of tax relief on capital gains for separated couples selling their property, from 3 years to merely 18 months. Before last year’s Autumn Statement, a separated couple (married or civil partnership) who were selling their main home would be entitled to tax relief on capital gains for 3 years after the separation. The timescale is now just 18 months.
The significance of this is that the sale of the main family property has to be finalised within just 18 months of one person leaving the marriage or civil partnership. The consequences are that, otherwise, when the person leaving decides to realise their equity, they will be confronted with a substantial tax bill.

As a means to reduce the expenditure and ramifications of possible divorce in the future, a rising number of couples are opting to have a pre-nup (a shortening of the phrase ‘prenuptial agreement’).

Romantics may state that pre-nups are cold and calculative. Supporters, however, claim that pre-nups give the couple a complete understanding of their finances; they have security regarding bequests, family trusts or children from previous marriages who are due an inheritance.

In the early 2000’s, hardly any divorce lawyers would encourage a couple to draw up a prenuptial agreement. Even now, they are still not legally binding. However, since the UK Supreme Court back in 2010 upheld the pre-nup for Katrin Radmacher, a heiress of German descent, against the claims of her spouse, Nicholas Granatino, the clout that a prenuptial agreement carries has been magnified. There seems to be a consistent rise in the number of pre-nups that are being drawn up. The call for prenuptial agreements to become fully enforceable in the courts in England and Wales has come from the Law Commission this year. By the next general election, there is a possibility that prenuptial agreements may become fully enforceable.
Regardless of the increasing or decreasing value of properties, individuals who are resistant towards mediation can expect an upsetting, complicated and ultimately costly experience.

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Familu Mediation – rooted in history

In the legal world it is easy to believe that mediation is a new form of conflict resolution, however such couldn’t be any further from the truth. The technique of mediation dates back thousands of years and is in fact deep rooted in ancient times. With such historical roots, it is no surprise that it remains a primary form of conflict resolution in Eastern and Western cultures. In fact, countries such as Japan and China still utilise the technique on a national scale. Mediation stands as a common alternative to court proceedings with regards to family law. However, the field is not without its critics, especially in the United Kingdom (UK), where its effectiveness has been regularly debated.

Family mediation in the United Kingdom

In the UK mediation has its strongest association with family law. The reason being that the Government planned to utilise the technique in an effort to stop divorce proceedings racking up costly court fees. The initial idea was that family mediation would help curb the tradition of court-based divorces, while reducing the monetary and emotional issues that stem from dragged out divorce proceedings.

Even though the thought was there, it can be argued that the Government were overly optimistic on the impact that mediation would have in the UK. It has never really translated into the form of divorce resolution that it was meant to be. The plan was that it would help reduce the need for court action via the 1996 Family Law Act, however it has failed to deter people from taking the costly court route in getting divorced. The reasons surrounding the inability for mediation to gain momentum in the UK included the following:

It never appeared to have the flexibility that it should have had, often appearing rigid and unaccommodating. Some labelled mediation meetings as a one-size-fits-all process, which never really took into consideration that each divorce varies greatly in size and situation.

The limited numbers that actually opted for mediation didn’t give the process glowing reviews. This hindered its creditability from day one, with the range of opinions about the service becoming widely known:

Just how necessary mediation is was regularly asked, as little was rarely done to actually conclude or even lead to an agreement between spouses.

It wasn’t initially considered mandatory to attend, meaning that some meetings never even occurred as scheduled. Even when it did become mandatory, couples that attended made little to no effort to participate.

Trust is always an issue when it comes to divorcing spouses, so what was stated during the mediation wasn’t always taken seriously, sometimes resulting in a stalemate.

Court based divorce options are considered traditional in the UK, with mediation finding it hard to shake off the alternative tag.

The numbers opting for mediation were quite low, with only around 8000 taking part in information meetings. Only 10% of those chose mediation as a way to resolve divorce disputes and only 10% of that admitting that it helped resolve their issues. Even some of those admitted that they still needed legal input to reach an agreement. Mediation in some regards was doomed to fail in its early days; lack of information and poor organisation meant that it would never get off on the right foot.

Family Mediation- Failure to launch

The Government wasn’t shy in giving reasons as to why mediation wasn’t well received, but research proved to be the telling factor. It was too easily confused with marriage counselling and reconciliation, thus putting people off from agreeing to get involved. Other reasons listed were:

• The divorce at hand was too complex to resolve in a mediation environment.

• Not all parties were willing to attend mediation appointments.

• There was a lack of issues to actually mediate, especially when there was good communication between spouses in spite of the divorce.

• Certain spouses believed that the only way to protect their possessions during a divorce was with legal protection, effectively nullifying any talks that did take place.

Initially mediation meetings were a publicly funded legal aid, they were considered a precursor to any further divorce action and were mandatory should a couple want to claim further financial support. There were several exemptions to this rule. Those who couldn’t attend mediation due to a lack of available mediators, along with those involved in a divorce based upon domestic violence were allowed to bypass mediation.

If you are looking for a way to sort out any family law issues, which is less expensive, acrimonious and time consuming than court divorce, you make sure you contact one of our family mediation specialists. Our family law team includes two jointly qualified family lawyers/mediators.

On 22 April 2013 many reforms were made to the family justice system such as the creation of a single family court, putting a 26 week time limit on care proceedings cases and the introduction of compulsory family mediation information meetings for couples seeking a divorce.

Section 11 of the Act, which planned to introduce to law the idea of “equal parenting” when couples divorce is on hold until the autumn. According to the Ministry of Justice, the delay allows them time to raise awareness about the changes, with the aim of making sure that proper support is in place before the new plans come into effect.

Many believe that following a series of funding cuts to both the court system and the Legal Aid system, that many couples who are going through divorce or going through separation cannot get access to legal advice. This means they cannot get help through the court process or to be helped find alternatives to court. These people end up representing themselves.

Data from the Ministry of Justice [MoJ] shows that the removal of Legal Aid for the bulk of private family law cases in 2013 is having a huge impact on the courts. The numbers of parents or grandparents who are representing themselves in child-related cases is up by a third between 2012 and 2013. For the last two months for which figures have been released, 52% of all parties in child-related cases are without legal representation.

This data came to light after a freedom of information request by a legal mediation charity. It shows that in November 2013, 3,941 parties attended court with representation, and 4,174 without. In December, the figures showed 3,481 parties with representation and 3,840 without. It does not appear though that the lack of funding is deterring parties from resolving their disputes through the court, as overall the number of parties going to court is up 5%. Figures also show a sharp fall in the number of parties going to mediation, even though Legal Aid remains for this. Parties going to mediation are down 40% since April 2013.

Cuts to Legal Aid were often justified by fears that lawyers were unnecessarily encouraging people to go to court, whereas it appears that exactly the opposite may be true. Without the help of a lawyer in resolving disputes, more couples end up going to court to reach an agreement. This is to the detriment of every party concerned.
Should we expect to see the Family Court system at crisis point? It is widely expected that the number of parties representing themselves will rise as the number entitled to Legal Aid tails off. Also, the reforms being introduced aim to take pressure off the court system by encouraging collaborative law and mediation.

A spokesperson for the Ministry of Justice said that there have always been a number of people who prefer to represent themselves in court and that judges have the knowledge to support them through this. The MoJ also said they are committed to increasing the use of mediation, and that millions of pounds was dedicated to this. The MoJ is also monitoring the impact which cuts to the Legal Aid budget is having.

One of England’s most senior judges has advocated removing the responsibility for divorce from judges, and instead allowing them to be dealt with a “registrar of births, deaths, marriages and divorces”.

Munby is of the opinion that when both parties want to divorce and there are no children involved, the process of getting divorced should be purely administrative, and dealt with by a Registrar. This already happens in many countries and Munby wants the UK to think about a similar system.

Critics of any change feel that by taking divorce out of the hands of the court will make divorce easier, and will as a consequence undermine the concept of marriage. Munby rejected this, stating that here in the UK we have had “divorce for consent” for at least 30 years.

Munby stated that the current divorce system was “bureaucratic and administrative” and that judges go through the same process every time when considering whether the grounds for divorce are clear. Defended divorces are extremely uncommon in the UK. Changing the process will simplify divorce and should be seen as the continuation of a divorce reform process which was started in the 1900s.

Sir James Munby is worried about the unfairness of the current system when it comes to cohabiting couples. He said that it was unfair that separating cohabiting couples have not rights to financial support. Financial relief for divorcing partners has been set in law since the 1970s. Despite the uneven playing field and the Law Commission calling for change, so far no action has been taken.

The essence of the problem is that women who have been in a long term cohabiting relationship and whose partners have refused to get married, and who have made career or other sacrifices for their family are entitled to nothing, whereas women whose circumstances are identical but have married are entitled to claim support through the courts.

Sir James is also encouraging more divorcing couples to take up the offer of family mediation. He suggests that the poor level of take-up in mediation should have been foreseen by the government and that mediation is facing a crisis. He feels that the public has not been convinced about the benefits of family mediation, and hopes that once details about how the system works and now mediation can be made available, the take-up rates will increase.

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According to a welfare minister, the true cost of family breakdowns in the UK is higher and far deeper than just the multi-billion pound Benefits bill. The parliamentary under-secretary in the department for Work and Pensions, Lord Freud, stated that the £9 billion paid out annually in single-parent benefits is just the tip of the iceberg, and that the full social cost of family separation should be taken into account too.

Lord Freud also issued a call for marriage to be put back in its “rightful place” after a rapid increase in the number of children who are being brought up by parents who are not married. Lord Freud stated that co-habiting couples were four times as likely to split up compared with those who were married.

The real cost of relationship breakdown to the UK economy

The minister’s comments came with the acknowledgement that the annual bill for family splits in the UK could be as much as £46 billion.

In a speech in the House of Lords, Lord Freud also argued that the Government should be actively trying to halt the decline in the number of couples who are choosing to marry and cohabit instead. He spoke in answer to a point raised by the Right Reverend Peter Forster, Bishop of Chester, about the cost to the taxpayer of separating families.

Lord Freud responded by stating that the total cost of single parent benefits and administering the collection of child maintenance payments was just under £9 billion a year, but that these figures only gave a partial picture. Lord Freud referenced a study by the Relationships Foundations which found that family breakdown in Britain costs £46 billion a year which is equal to just over £1500 for each UK tax payer. This estimate includes the costs associated with placing children in care and a portion of the budgets for the NHS, education and justice departments.

There have been several studies linking family separations with children falling behind at school, struggling to find a job, poor mental health and becoming involved in criminality.

Lord Freud backed his arguments with a series of facts and figures related to family breakdown. He indicated that the government’s annual single parent benefits bill is over £8 billion, and it costs over £500 million a year to run the Child Support Agency which looks after over 1 million child support cases and payments. There is an estimated 2.5 lone parent families in the UK with over 4 million children. One million single parents claim Housing Benefits, but despite the welfare payments, almost three quarters of a million children of lone parents are described as being in “relative poverty”.

When asked about what exactly the Coalition is doing to promote marriage, Lord Freud claimed that the number of couples living together had doubled in less than a generation. The number of cohabiting couples is now 1.2 million, and Lord Freud stated that cohabitees with a child under three are four times more likely to split up than a married couple.

Chancellor George Osborne has promised to introduce a tax break of £150 for couples who are married, and Iain Duncan Smith the Work and Pensions secretary has also been looking at the Benefits system to remove the “couple penalty”.

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